ROBKAR Vs. G D SHARMA

JUDGEMENT

(1.) On June 16, 1978 we had passed the following order: "Being of the view that the contemner G. D. Sharma was trying to dodge the court, we vide our order dated June 12, 1978 had issued non -bailable warrant against the contemner. The date was fixed for today at Srinagar. The warrant was sent to Superintendent Police, Jammu for execution. S. P. Jammu, it appears endorsed the same to one Saif -Ali Chowdhry. S. I. Incharge Police post Panjtirthi, Jammu, We have received back the warrant which was issued in duplicate i.e. one on the home address of the contemner and the other on his official address, Both the warrants contain a report of the officer that the contemner is evading service. We have today recorded the statement of Saif -Ali Chowdhry from which it transpires that the contemner has been absconding. In these circumstances therefore there will be no point in further issuing any warrant to the contemner for securing his presence before the Court. We have heard the learned Advocate General on the merits of the case. He has also taken us through the relevant record of the file. From hearing as well as from perusing the record we are convinced that the guilt against the contemner stands fully proved. We therefore, hold the contemner G. D. Sharma guilty for contempt of court on the basis of the allegations contained in the show cause notice dated 8 -12 -1976 and in exercise of the powers vested in us under section 94 of the Constitution of Jammu and Kashmir read with Clause 23 of the Letters Patent (Jammu and Kashmir) convict him to under go simple imprisonment for a period of three months and a fine of Rs. 500/ -. In case he makes default in payment of fine, he shall undergo simple imprisonment for a further period of one month. Reasoned judgment will follow. A non -bailable warrant of arrest for committing the contemner to jail and warrant for recovery of fine shall be issued against the contemner G. D. Sharma.

(2.) WE now proceed to pass the reasoned judgment. Civil 2nd appeal (No. 9 of 1973) entitled Sikander Paul Jain vs. Gurcharan Singh which should have been ordinarily heard and disposed of by a Single Judge was referred to a Division Bench by Honble the Chief Justice (S. M. F. Ali as his Lordship then was) as the same, according to his Lordship, involve an important point of law, requiring reconsideration of an earlier Single Bench judgment of this Court, the contemner G. D. Sharma who is a practising lawyer of this court raised a preliminary objection before the Division Bench hearing the appeal that the reference was incompetent. The Division Bench consisting of Anand and Kotwal J. J. being of the view that the preliminary objection was without any force, overruled the same by its order dated December 1, 1976. An application under Art. 133 of the Constitution of India was moved on behalf of the respondent Gurcharan Singh by his Advocate V. K. Maggu en December 8, 1976 for grant of certificate of fitness for leave to appeal to the Supreme Court of India against the aforesaid order. Alongwith this application the contemner also filed his affidavit. This application came up for admission before the same Bench on December 8, 1976 and the contemner appeared in person to argue the matter. The court while going through the affidavit of the contemner noticed that it contained certain remarks which were highly contemptuous. An notice was therefore, served upon the contemner there and then to show cause as to why he be not punished for contempt of Court. The contemner did not deny, either that he had sworn the affidavit, or that it contained remarks which were contemptuous, but only pleaded that whatever he had deposed therein was, according to him, based upon facts and sought opportunity to file written statement on the following day. This opportunity was granted to him and he was further directed to be present in person. On December 9, 1976, however he neither filed written statement nor cared to appear in the court in person. On the other hand he just instructed one V. K. Maggu advocate to inform the Court that he was not feeling well. As there was no written application, muchless an affidavit or medical certificate supporting the same, to pray that the case may be adjourned as he was unwell, the Court declined to accept the statement of advocate and issued bailable warrant against the contemner to secure his presence in the Court on December 10, 1976. As the warrant issued to the contemner was discovered to be defective, fresh warrants, i.e. one on his home address and the other on his office address were issued against the contemner and the case was adjourned to December 13, 1976. On this date too the contemner did not appear nor bothered to file any written statement. As the officer charged with the duty of executing the warrants had reported the was not traceable at all, the Court was compelled to issue non -bailable warrant against the contemner with a direction to the Dy. Registrar, High court to put up the matter before the Court only after the warrant had been executed.

(3.) ON April 12, 1977 the contemner appeared in person and prayed for withdrawal of the non -bailable warrant issued against him by making an application to that effect. In this application which was also supported by an affidavit, the contemner further alleged that he had filed a special Leave Petition in the Supreme Court, challenging the validity of the contempt proceedings, which had been fixed for April 18, 1977 for preliminary hearing. He therefore, made a two -fold prayer one, to suspend the proceedings in the contempt matter for an initial period of one year and two, to withdraw the non -bailable warrant issued against him. Time was allowed to him till April 25, 1977 and the non -bailable warrant was also withdrawn subject to the contemners furnishing security in the amount of Rs. 5,000/ -. The same V. K. Maggu advocate stood surety for the contemner, who was accordingly enlarged on bail. The contemner was again directed to either obtain a stay order from the Supreme Court or file the written statement by April 25, 1977. On this date the contemner neither produced any stay order not filed any written statement, but the Court granted him further time till May 5, 1977 to do the needful. On this date, however, he produced the stay order issued by the Supreme Court in S. L. P. No. 108 of 1977 on May 2, 1977 and proceedings in the matter were accordingly stayed.